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Planning Court Judgments

Our latest update as to any rulings last week of the Planning Court together with any relevant appellate judgments, along with a commentary by Town Legal LLP and links. Where appropriate, we also include other relevant public law rulings from other courts.

Planning Court Weekly Update – Week to 5 August 2022

This is a list of judgments of the Planning Court following a full hearing, or arising from an appeal from a Planning Court judgment, that were handed down in the preceding week. All links are to the relevant BAILII transcript. Summaries are for information only and are not to be relied upon as advice.

Index

Kinsey, R (On the Application Of) v London Borough of Lewisham [2022] EWHC 1774 (Admin) (11 July 2022). View summary here.

Save North St Albans Green Belt & Ors, R (On the Application Of) v Hunston Properties Ltd & Ors [2022] EWHC 2087 (Admin) (04 August 2022). View summary here.

Worthing Borough Council v Secretary of State for  Levelling Up, Housing  And Communities & Anor [2022] EWHC 2044 (Admin) (01 August 2022). View summary here.


Kinsey, R (On the Application Of) v London Borough of Lewisham [2022] EWHC 1774 (Admin) (11 July 2022)

In Spring 2021 Lang J upheld the Claimant’s judicial review of a decision taken by the London Borough of Lewisham (“the Council”) to grant planning permission to the City of London Corporation for the redevelopment of the Sydenham Hall Estate. The development site includes listed buildings and parts fall within a conservation area. The matter was remitted to the Council and in Summer 2021 the Council’s planning committee again resolved to grant planning permission. This case concerned whether the Council acted lawfully in granting the planning permission the second time round.

Ground 1 concerned the use in the Officer’s Report of the phrase “optimum viable use” which refers to paragraph 196 of the National Planning Policy Framework (“NPPF”) which states that “where a development proposal will lead to less than significant harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use” (underlining added).

Despite the use of the phrase in a number of different parts of the Officer’s Report, all parties were agreed that this paragraph of the NPPF didn’t apply to the development proposals as these did not involve a designated heritage asset. Further, no evidence had been provided as part of the planning application as to the viability of the scheme or of any alternative scheme. As such, the Claimant contended the Officer’s Report materially misled members of the planning committee.

Mr Justice Fordham found that, although it was regrettable that the phrase had been used, when read as a whole the Officer’s Report was not materially misleading, particularly as officers did not introduce a conclusion for which there was no evidence or which was unreasonable in public law terms.

Fordham J also rejected, under s.31(2A) of the Senior Courts Act 1981, the Claimant’s contention that a material consideration, in this case an objection by the London Wildlife Trust, had not been taken into account by the Council in its decision-making, leading to an unlawful decision. Fordham J rejected this argument on the basis that had the relevant material consideration been considered, it would have made no difference to the outcome.

The remaining Grounds related to issues regarding the publication (and non-publication) of documents by the Council, and the timing of such publications. The Judge dismissed each of these grounds on the basis that on a proper reading of Section 100D(5) of the Local Government Act 1972 “background documents” that need to be published alongside an officer’s report only include those documents that:

  • “have (…) been relied on to a material extent in preparing the report”; and
  • “disclose any facts or matters on which (…) the report or an important part of the report is based”.

Full case

Written by Juliet Munn, Town Legal.

 

Save North St Albans Green Belt & Ors, R (On the Application Of) v Hunston Properties Ltd & Ors [2022] EWHC 2087 (Admin) (04 August 2022)

This judicial review case concerned the decision of St Albans City and District Council (“the Council”) to grant outline planning permission for a residential development of up to 150 dwellings on land known as Sewell Park (“the Site”), situated within the Metropolitan Green Belt.

The Claimants, Save North St Albans Green Belt (an action group formed by local residents) and their representatives, pursued three grounds of challenge, as follows:

  1. The advice to Members of the Planning Referrals Committee (“the Committee”) in the officer’s report (“OR”) significantly misled the Committee as to the basis upon which it was justifiable to depart from previous decisions refusing planning permission at the Site;
  2. The Council was under a duty to give reasons for its decision to grant permission and why it departed from the previous decisions refusing planning permission at the Site and the reasons given in the OR were inadequate and insufficient on this issue;
  3. The Committee acted unlawfully by taking into account irrelevant considerations and failed to take into account relevant considerations, given that the OR relied upon material in support of the application for planning permission which was based on an earlier proposal for only 132 dwellings whereas the proposal before the Committee was for “up to 150” dwellings.

None of the three grounds succeeded.

For Ground 1, the Claimants argued that a paragraph of the OR gave a misleading impression that the green buffer between the built development and the open countryside in the proposed development was an improvement on one of the two appeal schemes (“Appeal B”), which was in fact a significantly smaller development, extending significantly less far into the countryside.

Mrs Justice Lang accepted that the officer “probably ought to have reminded” Members of the smaller size of the Appeal B proposal and so the impact on the Green Belt overall would be less than the impact of the proposed development. However, in her judgment, this failure was not seriously misleading in a material way which could have made a difference to the Committee’s decision: not only was the information elsewhere in the OR but also the lesser impacts of a smaller development would have been obvious to Members.

On Ground 2, Mrs Justice Lang did not consider that the Council was under a common law duty to give reasons, but in any case, the lengthy and detailed OR met the standard required.

On Ground 3, Mrs Justice Lang held that the officer’s judgment that the information provided with the application allowed a full assessment of the impacts of up to 150 dwellings to be considered could not be challenged. In coming to this conclusion, Mrs Justice Lang referred to a paragraph in the OR where the officer made express reference to the fact that some material related to a 132 dwelling scheme but was nevertheless sufficient, especially since layout and scale were reserved matters. Moreover, she held that officers and Members would be well able to assess impact on character and appearance and landscaping on the basis of a 150 dwelling scheme with the information provided, since the Site boundary was fixed and the areas of open space within the Site were shown on the parameter plans, which were enforced by condition.  She further found that the inclusion of a net density figure in the OR relating to the 132 dwelling scheme was not in error, since the OR was “correctly recording what was ‘specified in the application submission’”.

Accordingly the application was dismissed.

Commentary: In this case it seems the devil is in the detail – namely, the type of material that made reference to the 132-dwelling scheme and the fact that the officers were aware of and addressed this discrepancy in their OR.  However, it seems that the reference to the net density figure for the 132-dwelling scheme in the OR could be interpreted in such a way as to indicate an error and therefore some further elaboration as to why the Council’s interpretation was correct would have assisted.

Full case

Written by Stephanie Bruce-Smith, Town Legal.

 

Worthing Borough Council v Secretary of State for  Levelling Up, Housing  And Communities & Anor [2022] EWHC 2044 (Admin) (01 August 2022)

This was a successful claim under section 288 of the Town and Country Planning Act 1990. The Council (the “Claimant”) had refused an outline application for planning permission for a mixed-use development comprising 475 residential units and a local centre.

The reasons for refusal centred on incompatibility with a policy in the adopted local plan which resisted development outside the built-up area and prematurity in the context of the emerging local plan. Planning permission was subsequently granted on appeal by an Inspector on behalf of the Secretary of State (the “Defendant”). The Council challenged the validity of the Inspector’s decision.

The first ground of challenge was that the Inspector had failed to achieve the standard of reasoning required following the decision of the House of Lords in South Buckinghamshire District Council v Porter [2004] UKHL 33. The Claimant argued that it was left in genuine doubt as to the Inspector’s conclusions on the impact of development on a gap between settlements, and that the Inspector had failed to reach a conclusion at all as to whether the development would conflict with a policy in the emerging plan. Giving judgment, Lang J observed that two express reasons had been provided by the Inspector to support his conclusion that the gap between the settlements would not be “materially undermined”. The Judge further found that the Inspector had reached a conclusion as to the conflict with the emerging policy, albeit that this was characterised as a “potential conflict” attracting limited weight since the final form that the policy would take was not clear at the time of the appeal inquiry. The standard of reasoning in South Bucks having been satisfied, the first ground was unsuccessful.

The Claimant had more success with ground two, in which it sought to establish that the Inspector had not taken account of a conflict with two policies within the emerging local plan. The first of these policies set out the overarching spatial strategy and the second which addresses the principle of development outside the built-up area. The Council submitted that it was unable to discern from the decision whether the Inspector had identified a conflict with these policies and if he had, how much weight he had attributed to it. The Secretary of State’s position was that the Inspector had had regard to the emerging policies and that in any event, the outcome would have been no different since the issues covered by the policies in question were addressed in a policy within the adopted plan to which the Inspector had expressly had regard.

The Judge found that the relevant policies were clearly material and that the Inspector’s omission to consider them properly “was probably an oversight”.

In considering the second part of this ground (related to outcome), Lang J distinguished the instant case from the findings of the judge in West Oxfordshire District Council v Secretary of State [2018] EWHC 3065 (Admin), who had held that a failure to have regard to emerging policies was not always necessarily fatal to a decision. Having considered the wording of the relevant emerging and adopted policies in some detail, Lang J noted that the circumstances in which the policies were developed were different, finding that the adopted policy was protective in nature and prepared in the context of a much lower housing requirement, whereas the emerging plan has been formulated on the basis that the Council will not be able to meet its needs. At the local plan examination, that Inspector had apparently accepted this position, but in determining this appeal the Inspector decided to depart from policy on the basis that the Council could not meet its housing need. Though the Judge found it likely that the Inspector would have identified a conflict with the emerging policies, she was unable to predict the assessment that the Inspector would have made on this complex issue and so she could not conclude that the Inspector’s decision would have been the same if he had properly considered the emerging policies. Accordingly, ground two succeeded.

The third ground concerned whether or not the Inspector had taken into account a material consideration, though in the final analysis Lang J held that the matter in question “could not amount to anything more than background information.”  The Claimant contended that the Inspector should have taken into account its explanation for there being no policy designation for specific gaps in its currently-adopted core strategy, which was apparently due to the prevailing guidance applicable during the period of the South East Plan. The Claimant argued that the Inspector’s failure to appreciate this context led him to attribute less significance than he would otherwise have done to the importance of the site to the strategic gap between settlements. Applying the law on the relevance of extrinsic evidence to the construction of planning policies, Lang J dismissed this ground.

The fourth and final ground turned on the Inspector’s conclusions in respect of the impact of development on the South Downs National Park. The Inspector had found that there would be a “moderate adverse” impact on views, but despite this determined that neither the setting of the National Park or views from within it would be materially affected. It was submitted that the Inspector had failed to comply with his statutory duty under Section 11A of the National Parks and Access to the Countryside Act 1949, which enjoined him to have regard to the purpose of conserving and enhancing the natural beauty of the National Park. It was further submitted that the Inspector had failed to apply paragraph 176 of the NPPF, for “great weight” to be given to conserving and enhancing landscape and scenic beauty in National Parks.

The Defendant pointed out that the National Park Authority had not objected to the proposal. However, the Judge observed that the Inspector had made no reference to the National Park in his planning balance and this had led him not to give any weight at all to the moderate adverse effect that he had acknowledged. Lang J also decided that the Inspector had failed to discharge his s11A duty, since he had failed to have regard to the statutory purpose when conducting his planning balance. As the Judge could not conclude that the Inspector’s decision would have been the same if he had applied the correct tests, ground four was successful and the claim for statutory review was allowed.

Commentary: Aside from the interesting delve (at paragraphs 99 to 106) into the context in which the adopted and emerging spatial strategies were prepared, this judgment is a handy reminder of the distinction between “great weight” in paragraph 176 of the NPPF, and “great weight” in paragraph 199 of the NPPF. The heritage-related line of case law holds that considerable weight and importance must always be given to harm to heritage assets (see East Northamptonshire District Council v Secretary of State [2014] EWCA Civ 137). In contrast in landscape impact cases, the courts have found that the decision maker is entitled to attach a different weight to the impact of a proposal on a designated landscape depending on the degree of harm, notwithstanding the direction given in the NPPF for great weight to be given (see Bayliss v Secretary of State [2014] EWCA Civ 347). Though paragraph 138 of the judgement suggests that Lang J might have had some sympathy with the claimant’s argument that the same analysis as in East Northamptonshire should be applied here, she was bound by the doctrine of precedent to apply Bayliss “unless or until the Court of Appeal takes a different view”.

Full case

Written by Aline Hyde, Town Legal.

 

Key contacts
Juliet Munn
Senior Associate, Town Legal LLP
Londone juliet.munn@townlegal.com
d 020 3893 0392
Stephanie Bruce-Smith 
Paralegal, Town Legal LLP
Londone stephanie.bruce-smith@townlegal.com
d 020 3893 0428
Aline Hyde
Paralegal, Town Legal LLP
Londone aline.hyde@townlegal.com
m 07551 375043

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